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Appeal judges' wind farm ruling a "serious attack on democracy"

9 August 2010

A Court of Appeal ruling that all council committees must make decisions by a simple majority has been condemned as a “serious attack on democracy”.

The court was ruling on a decision by South Norfolk District Council to grant planning permission for a wind farm on the site of a Lotus factory in Hethel.

The council’s main planning committee narrowly backed the turbines by a simple majority after an area planning committee voted against by 5:3. A procedural rule stated that the decisions of area committees were only binding if arrived at by a majority of at least two thirds.

Stuart Shortman, the council’s solicitor, said: “The beauty of the current delegated system is that it runs itself. Individuals have to intervene very rarely.

“The main planning committee takes decisions by a simple majority, which is why we thought we were not breaking the rules.”

Shortman said that area planning committees would now have to be given more or less power, or even abolished completely. “This is a serious attack on democracy,” he said.

He added that it was unlikely that, after leave to appeal was refused, that the council would appeal directly to the Supreme Court.

Giving the leading judgment in R (on the application of the Friends of Hethel) v South Norfolk District Council [2010] EWCA Civ 984, Lord Justice Sullivan said the requirement for the area committee to have a two- thirds majority was contrary to the voting provisions in schedule 12 to the Local Government Act 1972.

He said the council could have “lawfully included a proviso” that the area committee had delegated authority to determine decisions, so long as its decisions, taken by a simple majority, were in accordance with the head of planning services.

“If the two-thirds requirement was unlawful, as I think it was, there was no valid reference to the planning committee and it did not have power to determine the application,” he said.Sullivan LJ added that the arrangements delegating power to the area planning committee were “lawful in principle”.

The appeal judges quashed the planning permission for a further reason, on the grounds that the district council had failed to properly consult English Heritage on the impact of the wind farm on more than 200 listed buildings within five kilometres of the development, including 24 listed as Grade I or Grade II*.

Sullivan LJ said the question was whether the development would affect the listed buildings, not whether it would affect them so seriously that it would justify the refusal of planning permission.

“The extent of the effect, and its significance in terms of the setting of the particular listed building, are precisely the matters on which English Heritage’s expert views should be sought.”

He allowed the appeal by the Friends of Hethel on both grounds and quashed the permission. Lord Justice Lloyd agreed, as did Lord Justice Sedley, for different reasons.

Richard Harwood, barrister at 39 Essex Street, acted for the Friends of Hethel. He said the district council’s voting arrangements were “unusual” but possibly not unique.

Harwood said the case was the first to test local authorities’ majority voting rules since the 1972 Act and could be the first since the Municipal Corporations Act in 1882.

“The Acts are trying to avoid a situation where decision making is skewed by the requirement of a special majority,” he said.

He added that if the district council’s voting rules were upheld, other councils might have followed them.

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